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Schedule 4—Public interest test for amalgamations

Schedule 4 Public interest test for amalgamations

   

Fair Work (Registered Organisations) Act 2009

1  Section 6

Insert:

compliance record event has the meaning given by section 72E.

2  Section 34

Omit:

The 2 main elements of the amalgamation procedure are an application to the FWC seeking approval for a ballot to be held on the question of amalgamation, and the holding of a ballot conducted by the Australian Electoral Commission.

substitute:

An amalgamation involves an application to the FWC seeking approval for a ballot to be held on the question of amalgamation, and the holding of a ballot conducted by the Australian Electoral Commission.

Before an amalgamation can take effect, the FWC must decide whether the amalgamation is in the public interest. The amalgamation does not take effect if the FWC decides that it is not in the public interest.

3  Section 34

After “amalgamated organisation)”, insert “, if the amalgamation takes effect”.

4  Section 37

Repeal the section, substitute:

37   Exercise of the FWC’s powers under this Part

             (1)  The powers of the FWC under this Part, other than under Subdivision A of Division 6 (public interest test for amalgamations), are exercisable only by the President, a Vice President or a Deputy President.

             (2)  The powers of the FWC under Subdivision A of Division 6 are exercisable only by a Full Bench.

5  Subsection 56(1)

Omit “Objection”, substitute “Except as provided by Subdivision A of Division 6, objection”.

6  At the end of section 67

Add:

             (4)  Subsection (2) does not authorise the FWC to dispense with deciding under section 72A whether the amalgamation is in the public interest.

7  Before section 73

Insert:

Subdivision A Public interest test for amalgamations

72A   Decision whether amalgamation is in public interest

             (1)  Before fixing an amalgamation day under section 73 for a proposed amalgamation, the FWC must decide whether the amalgamation is in the public interest.

Note:          An amalgamation does not take effect if the FWC decides it is not in the public interest (see section 72F).

             (2)  The FWC may make the decision at any time after an application under section 43 or 44 is lodged with the FWC in relation to the amalgamation.

72B   Hearings about public interest

             (1)  The FWC must:

                     (a)  fix a time and place for hearing submissions in relation to the matters mentioned in subsection 72D(1) (record of compliance with the law); and

                     (b)  promptly notify the existing organisations concerned in the amalgamation of the time and place of the hearing; and

                     (c)  promptly publish notice of the time and place of the hearing on its website and in any other way the FWC considers appropriate.

             (2)  If the matter is not concluded under subsection 72D(2), the FWC must:

                     (a)  fix a time and place for hearing submissions in relation to whether the amalgamation is otherwise in the public interest; and

                     (b)  promptly notify the existing organisations of the time and place of the hearing; and

                     (c)  promptly publish notice of the time and place of the hearing on its website and in any other way the FWC considers appropriate.

72C   Persons who may make submissions about public interest

             (1)  Submissions in relation to the matters mentioned in subsection 72D(1) (record of compliance with the law), and whether the amalgamation is otherwise in the public interest, may be made by any of the following persons:

                     (a)  the existing organisations;

                     (b)  any other organisation that represents the industrial interests of employers or employees in the industry or industries concerned or that may otherwise be affected by the amalgamation;

                     (c)  a body other than an organisation that represents the interests of employers or employees in the industry or industries concerned;

                     (d)  the Commissioner;

                     (e)  the Minister;

                      (f)  a Minister of a referring State (within the meaning of the Fair Work Act), or of a Territory, who has responsibility for workplace relations matters in the State or Territory;

                     (g)  any other person with a sufficient interest in the amalgamation.

             (2)  The FWC must:

                     (a)  in considering the matters mentioned in subsection 72D(1)—have regard to any submissions made by persons mentioned in subsection (1) of this section in relation to those matters; and

                     (b)  if the matter is not concluded under subsection 72D(2)—have regard to any other submissions made by persons mentioned in subsection (1) of this section.

72D   Matters to which the FWC must have regard

Record of compliance with the law

             (1)  In deciding whether the amalgamation is in the public interest, the FWC must have regard to any compliance record events that have occurred for each of the existing organisations.

             (2)  If, having regard to the incidence and age of compliance record events for an existing organisation, the FWC considers that the organisation has a record of not complying with the law, the FWC must decide under section 72A that the amalgamation is not in the public interest.

Other matters of public interest

             (3)  If the matter is not concluded under subsection (2), the FWC must, in deciding whether the amalgamation is otherwise in the public interest, have regard to the impact the amalgamation is likely to have on:

                     (a)  employees in the industry or industries concerned; and

                     (b)  employers in the industry or industries concerned.

             (4)  The FWC may have regard to any other matters it considers relevant.

72E   Compliance record events

Involving organisation or members

             (1)  A compliance record event occurs for an organisation if:

                     (a)  a designated finding or a wider criminal finding is made against the organisation; or

                     (b)  the organisation is found to be in contempt of court in relation to an order or injunction made under any law of the Commonwealth or a State or Territory; or

                     (c)  the organisation, or a substantial number of the members of:

                              (i)  the organisation; or

                             (ii)  a part of the organisation; or

                            (iii)  a class of members of the organisation;

                            organises or engages in industrial action covered by subsection 28H(2).

Involving officers

             (2)  A compliance record event also occurs for an organisation if:

                     (a)  a designated finding is made against a person, if the person was an officer of the organisation at the time of the conduct to which the finding relates; or

                     (b)  a wider criminal finding is made against a person, if the person:

                              (i)  was an officer of the organisation at the time of the conduct to which the finding relates; and

                             (ii)  engaged in the conduct in the course of (or purportedly in the course of) performing functions in relation to the organisation; or

                     (c)  a person is found to be in contempt of court in relation to an order or injunction made under any law of the Commonwealth or a State or Territory, if the person:

                              (i)  was an officer of the organisation at the time of the conduct to which the finding relates; and

                             (ii)  engaged in the conduct in the course of (or purportedly in the course of) performing functions in relation to the organisation; or

                     (d)  a person becomes disqualified from holding office in an organisation while he or she is an officer in the organisation.

72F   Amalgamation not in public interest does not take effect

             (1)  If the FWC decides under section 72A that the amalgamation is not in the public interest:

                     (a)  the FWC must not fix an amalgamation day for the amalgamation; and

                     (b)  the amalgamation does not take effect.

             (2)  If the FWC decides under section 72A that the amalgamation is not in the public interest at any time before the FWC approves the submission of the amalgamation to ballot, then, despite any other provision of this Part, the FWC must refuse to approve the submission of the amalgamation to ballot.

Subdivision B Amalgamation taking effect

8  Subsection 73(1)

After “takes effect”, insert “(if at all)”.

9  Subsection 73(2)

After “If”, insert “the FWC has decided under section 72A that the amalgamation is in the public interest and”.

10  Paragraph 73(2)(c)

Repeal the paragraph, substitute:

                     (c)  there are no proceedings of the kind mentioned in subsection (2A) pending against any of the existing organisations concerned in the amalgamation; and

11  At the end of subsection 73(2)

Add:

Note:          An amalgamation does not take effect if the FWC decides it is not in the public interest (see section 72F).

12  After subsection 73(2)

Insert:

          (2A)  For the purposes of paragraph (2)(c), the kind of proceedings are:

                     (a)  criminal proceedings in relation to:

                              (i)  a contravention of this Act, the Fair Work Act or any other law of the Commonwealth; or

                             (ii)  a breach of an order made under this Act, the Fair Work Act or any other law of the Commonwealth; and

                     (b)  civil proceedings for a contravention of a provision mentioned in a subparagraph of paragraph (b) of the definition of designated finding in subsection 9C(1).

13  Application of amendments

(1)       Without limiting the application of the amendments made by this Schedule, those amendments apply in relation to a proposed amalgamation if, on the day this item commences, an amalgamation day for the amalgamation has not been fixed under section 73 of the Fair Work (Registered Organisations) Act 2009 .

(2)       To avoid doubt, subitem (1) applies regardless of whether an application was lodged under section 43 or 44 of that Act in relation to the amalgamation before this item commences.

(3)       A reference in the Fair Work (Registered Organisations) Act 2009 to a compliance record event includes an event that occurred before this item commences.